No final decision on lobby lawsuit
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By Cristina Kumka Herald Staff - Published: January 8, 2009
Judge William D. Cohen of Rutland Superior Court has had months to mull over a request from a teacher to make a legal judgment on whether or not a school board has the right to spend public money on legislative lobbying.
There's no law on the books in Vermont to indicate it's illegal for school officials to pay others who urge top elected officials to pass bills or fight for educational causes.
On Tuesday, Cohen refrained from making a final judgment in the case of Curtis Hier, a Fair Haven Union High School social studies teacher, against Fair Haven Grade School and the organization that lobbies for it, the Vermont School Boards Association.
Following the second round of oral arguments, Cohen granted Hier's lawyer, Paul Gillies, another opportunity to respond to a motion to dismiss the case brought by Fair Haven and the VSBA, biding him some time to make a written ruling.
Hier, founder of the political action committee First Class Education for Vermont, filed the lawsuit Aug. 22 seeking judgment on the "rights of a school board to spend public money on lobbying efforts by a private organization" — in this case, a $1,400 line item in Fair Haven Grade School's budget.
Cohen, tasked with making a ruling in uncharted legal territory and grappling with understanding Hier's motivations throughout the case, questioned who, if not an individual taxpayer, would have the right to fight a school board over taxpayer dollars used for lobbying.
Jeff Marlin, attorney for the Fair Haven School Board, said Hier didn't have a legal leg to stand on.
"The school budget is voted on by the voters," Marlin said in court Tuesday.
"Line by line is not permissible after the fact."
According to Marlin, there's a distinction between a person suing over the use of taxpayer money and pecuniary harm to an individual taxpayer. He argued that since Hier hasn't directly suffered a loss because of lobbying, he can't fight the School Board because of it, Marlin argued.
VSBA attorney Bernard Lambek said individual school boards and the state Commissioner of Education could both file suit in Superior Court if they thought lobbying was improper or the money used for it unlawful, but Hier's complaint as a citizen was "insufficient and inadequate as a matter of law."
But there's an exception, Lambek said.
"Suppose there is a bill to close a landfill next to a school and the VSBA supports it," he said.
"The landfill operator has standing to bring suit, because of personal injury, against the VSBA for lobbying for that cause for the school board."
Gillies argued that school boards shouldn't have free reign and Hier had legal standing solely because of his status as a teacher and taxpayer with an interest in education funding.
Gillies said his client's argument was that school boards "shouldn't use taxpayer money at all" for lobbying.
Nearly all of Vermont's 245 town, city and incorporated school district subscribe to the VSBA and annual fees paid by those schools supports the association's $500,000 budget, said VSBA executive director and lobbyist John Nelson in an interview last year.
That money pays for three employees, school board workshops, newsletters, bulletins and lobbying.
Nelson has received $44,444 as compensation for lobbying on behalf of the association's member school districts since April of last year, according to information from the Secretary of State's Web site.
Hier is no stranger to fighting education in the public domain — he recently released a report on exorbitant special education funding throughout the state and has other lawsuits pending, where he is suing elected officials for the release of their e-mails.
Contact Cristina Kumka at cristina.kumka@rutlandherald.com.
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